NEW PERFORMERS' REGS FEEL THE DRAFT

1 Draft Performers' Moral Rights Regs now online

The IPKat has learned that the UK's draft Performers' Moral Rights Regulations are now available for inspection. It is expected that, if nothing exciting and unexpected happens in the meantime, they will be laid before Parliament by the end of 2005 and will come into force on 1 February 2006. If you have any late observations, don't waste any time - send them straightaway to Karl Whitfield.


2 Metamorphosis of Jerry Springer lets licensee off the hook

The IPKat came across this interesting case, courtesy of the LexisNexis All England Direct subscription service. It's Universal Studios International BV v Flextech Rights Ltd [2005] EWHC 2267 (Comm), a Queen’s Bench Division (Commercial Court) decided yesterday by Mr Justice Cooke.

Universal, a Dutch company, was the international licensor of the ‘Jerry Springer’ and ‘Maury Povich’ TV programmes. Flextech, an English company, acquired broadcasting rights for various satellite television channels including Living TV. Flextech broadcast 'Jerry Springer' on Living TV until 1997 under a series of one year agreements. In 1998 Universal wanted a ‘run of series’ deal for both television programmes which would mean that the licensee would acquire rights and pay for them as long as the shows were broadcast nationally in the United States. A contract to that effect was executed in October 1998. By that contact Flextech was licensed to show programmes from the 1998/1999 US broadcast season and thereafter for the run of both the 'Jerry Springer' and 'Maury Povich' series.

In December 2002 Flextech wrote to Universal, stating that the contents of 'Jerry Springer' significantly changed over the years, despite the fact that the parties had agreed that the programme would remain substantially similar in form and substance to the 1997/1998 US season. Flextech maintained that this change constituted a breach of the 1998 agreement and that Flextech was accordingly dissolving the 1998 agreement ‘as per 1 January 2003’ under Dutch law which governed the agreement. Universal disputed the validity of the dissolution and, maintaining that the 1998 agreement remained in force, sued to enforce it.

The court ordered the hearing of certain preliminary issues. The central dispute turned on the terms of clause 4(a) of the 1998 agreement which provided that each episode of 'Jerry Springer' in each licensed season was to be ‘similar in content and overall production value to the episodes in the 1997/1998 US broadcast season’. Flextech contended that that provision had been breached by the increasingly controversial nature of the programme that rendered Flextech unable to broadcast certain episodes.

Cooke J held that Flextech's construction of the terms of clause 4(a) was to be preferred.

* The natural and ordinary meaning of the word ‘content’ and its context meant that it covered everything that constituted the programme and formed part of it.

* What clause 4(a) envisaged was a broad comparator against which the content of each individual episode could be gauged. The warranty was that the episodes should be similar (not identical) in content to those of the earlier season.

* Comparison required an evaluation of content, which was a question of fact and degree.

* There was no doubt that a broad comparison was envisaged of a programme in the relevant season against the sweep of programmes in the comparator benchmark season, as appeared from the course of negotiations and in the form of words adopted.

* If it was proved that there was a dramatic change in content, Flextech was entitled to dissolve the contract.

The IPKat was not surprised at the construction of the clause, though he reckons that 30 or 40 years ago a provision such as this would routinely be regarded as being in danger of being held void for uncertainty. He was surprised at the contract being governed by Dutch law, since he tends to assume (erroneously) that, in contracts involving Anglo-American subject matter, Anglo-American contract law is everyone's first choice.

More about Gerald Norman ('Jerry') Springer here
Jerry Springer The Opera here